Sunday, November 14, 2010

Last Monday marked the release of former President George W. Bush’s memoir “Decision Points.” While I have not yet read much of the 512-page book, I have been able to search it electronically to confirm that it makes scant mention of any environmental issues. This is no surprise given the track record of the Bush administration on environmental issues during his eight years in office. Bush notes that the architect of the home he built at his Texas ranch used geothermal heat and recycled water to reduce its environmental impact and in a footnote about governors he mentions that he appointed Governor Mike Leavitt of Utah to become his “Environmental Protection Agency director and Health and Human Services secretary.” There is no other mention of EPA, no mention of the Interior Department, or of Christie Todd Whitman, Gail Norton, or Dirk Kempthorne, and the only time the word “regulation” appears is in connection with the financial crisis. Of course, former President Clinton’s “My Life” memoir, which is nearly twice the length of Bush’s book, mentions EPA Administrator Carol Browner only three times and one of those is in connection with her reaction to the Monica Lewinsky scandal.

Bush’s abrupt March 2001 decision to abandon his campaign promise to regulate emissions of CO2 is never mentioned in “Decision Points” and there are only two references to “climate change”. Bush states that he “worked with President Hu (Jintao of China) to find common ground on issues from North Korea to climate change.” The only other mention of global warming or climate change is his description of his efforts to convince other world leaders that it should not be the primary focus of the G-8 summit in 2007. Bush states that he “was willing to be constructive on the issue,” noting that in his 2006 State of the Union message he had decried America’s addiction to oil “a line that didn’t go over so well with some friends back in Texas.” After citing his efforts to promote alternatives to oil and to bypass “the flawed Kyoto Protocol,” he states: “I worried that the intense focus on climate change would cause nations to overlook the desperate immediate needs of the developing world.” Bush states that he told Angela Merkel, the meeting chair: “If world leaders are going to sit around talking about something that might be a problem fifty years from now, we’d better do something about the people dying from AIDS and malaria right now.” At the end of the book Bush states that by focusing on his most crucial decisions he devotes “just a few words to my record on energy and the environment, and I do not describe my decision to create the largest marine conservation areas in the world.”

Like many other countries, China has been experimenting with the creation of specialized environmental courts in various parts of the country. On Friday November 12, the city of Beijing received its first environmental court, which is located in Yanqing County in northwest Beijing. The court will be empowered to hear civil, administrative, and criminal cases involving environmental pollution. According to the China Daily, it is hoped that the court will be more effective in stopping environmental violations because it can issue administrative orders, award damages and levy criminal penalties against violators. Beijing First Environmental Court Was Established, China Daily, Nov. 14, 2010.

On Tuesday November 9 I visited Widener University School of Law in Harrisburg, Pennsylvania. I gave a luncheon talk on “Liability for Environmental Harm and Emerging Global Environmental Law” as part of the Widener Environmental Law Center’s Environmental Law Distinguished Speaker Series. Professor John Dernbach introduced me. Participating in the luncheon via videoconference were Widener faculty from their Wilmington campus, including Professors Jim May and David Hodas. I started my talk with a short video clip of Professor May performing a post-banquet serenade at the IUCN Academy of Environmental Law Colloquium in Ghent.

On Friday November 12 I spoke at a conference on “Presidential Influence Over Administrative Action,” which was held at Fordham University Law School in New York City. I developed a special interest in this topic as a result of bringing the first successful lawsuit against the Office of Management and Budget’s Office of Information and Regulatory Affairs for illegally blocking EPA’s promulgation of a regulation for which a statutory deadline had expired (EDF v. Thomas, 627 F.Supp. 566 (D.D.C. 1986)). In my talk, “Who’s In Charge? Should the President Have Directive Authority Over Regulatory Decisions Entrusted by Law to Agency Heads?” I argued that while the president’s removal authority gives him enormous influence over agency decisions, he ultimately does not have the authority to dictate them when disagreements arise. Columbia University law professor Peter Strauss gave a presentation in which he supported my view. He also provided a brilliant dissection of the Supreme Court’s recent Free Enterprise Fund decision where the Court struck down an effort by Congress to insulate from presidential removal officers of an agency (the Public Company Accounting Oversight Board) within another agency (the Securities and Exchange Commission). Professor Nina Mendelson of the University of Michigan Law School gave a presentation arguing for a presumption in favor of presidential directive authority. However, she agreed that the president could not sign Federal Register notices promulgating regulations when a statute requires that they be issued by an agency head.

Unfortunately, I could not stay for the afternoon panels of the Fordham conference because I had to be back in Baltimore for our Environmental Law Program’s annual Winetasting Party. We had another large turnout of alumni, students and faculty who had the opportunity to taste 76 different wines from a dozen countries. The wines included some old Bordeauxs from three different Médoc second growths, including three different vintages of Chateau Pichon Lalande, one third growth winery and some old vintage port. Alumni Jani Laskaris won the annual contest to guess the mystery wine, correctly guessing that it was a Greek cabernet, but missing the vintage year.

About Me

While on sabbatical during the 2007-2008 academic year, I began work on a casebook on Global Environmental Law, in cooperation with Professor Tseming Yang of Vermont Law School. During the spring semester 2008 I taught as a Fulbright scholar at the China University of Political Science and Law in Beijing. This university is the home of my friend Professor Wang Canfa, who directs an environmental law clinic and the Center for Legal Assistance to Pollution Victims, an NGO that has been active in seeking judicial redress for China's burgeoning pollution problems. I am now back at the University of Maryland School of Law. During the spring semester 2009 I taught Constitutional Law and a seminar on Global Environmental Law at Maryland. I also served as a visiting professor at Harvard Law School where I taught Environmental Law during the spring semester 2009.